Construction firm deemed employer of roofer injured in fall

A construction and roofing company was the statutory employer of a man who sustained serious injuries after he fell off a roof, even though he was acting as an employee of a subcontractor, the Supreme Court of Nebraska ruled.

In Martinez v. CMR Construction & Roofing, a three-judge panel of the court on Friday unanimously affirmed a state workers compensation court finding that the CMR Construction & Roofing of Texas LLC was required to compensate the worker for the injuries he sustained on the job.

In 2014, Haltom City, Texas-based CMR entered into an agreement with a subcontractor to repair residential roofs. CMR verified the subcontractor’s workers compensation insurance and directed the subcontractor to add CMR to its policy and produce a certificate demonstrating that the company would be notified of any changes to the policy.

On March 12, 2015, Juan Martinez, who was employed by the subcontractor, fell two stories from the roof of a house he was working on in Omaha, Nebraska, sustaining serious injuries to his back, hip and legs. He sought workers comp benefits for his injuries, but CMR learned that the subcontractor’s workers comp policy had been canceled in December 2014 due to nonpayment.

In 2016, the Nebraska Workers Compensation Court held that CMR was the statutory employer of Mr. Martinez, finding that CMR admitted it had “created or carried into operation a ‘scheme, artifice or device’ … to avoid employer liability.” CMR brought an interlocutory appeal, which was dismissed by the Nebraska Court of Appeals.

In 2018, the compensation court held a trial in the case, holding that Mr. Martinez was entitled to temporary total disability benefits for the three months after his accident, and found that he had suffered an 80% loss in his earning capacity and was therefore entitled to permanent partial disability benefits for a period of 286 weeks. The court ordered CMR to pay nearly $53,000 in medical and physical therapy expenses and held that Mr. Martinez was entitled to an award of future medical care for his neck injury.

CMR appealed the decision, but the Supreme Court of Nebraska affirmed. Although CMR argued that it did not qualify as a statutory employer because it required its subcontractor to obtain workers comp insurance, the court disagreed and noted that the Texas-based comp insurer had never been authorized to issue workers comp coverage in Nebraska — noting that the policy clearly showed that coverage did not extend to states other than Texas. Even if the subcontractor had maintained comp coverage, the court held that CMR would still have been jointly and severally liable for compensating the injured employees under Nebraska law.

CMR also argued about Mr. Martinez’s work capacity, but the court found that the evidence of Mr. Martinez’s permanent physical restrictions supported the determination of his earning capacity. The court also affirmed the compensation court’s award of attorneys fees to Mr. Martinez and his entitlement to future medical care.

“At the end of the day, my client deserved the decision because he was injured,” said James R. Walz in Omaha, attorney for Mr. Martinez. “There are plenty of ways this employer could have avoided this decision against them. You’ve got to do your own due diligence, and if you can’t, pay the bill because your insurers might not cover it either.”

CMR’s attorney, Ben Maxwell of Govier, Katskee, Suing & Maxwell P.C. in Omaha, said he believes the court erred in finding that CMR was the statutory employer of Mr. Martinez.

“At the end of the day, we believe CMR did everything they needed to do to properly conduct business in Nebraska,” he said.

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